Giving priority to constitutional reform

By Jehan Perera-December 28, 2015

The dawn of the New Year will see Parliament convening as a parliamentary committee of the whole to start the process of constitutional reform. This will be only the second time since the last constitution was made in 1978 that there will be a dedicated effort at constitutional reform. The previous occasion was in 2000 when former President Chandrika Kumaratunga presented a constitutional bill to Parliament which was literally burnt by the opposition. The promise to amend the constitution was made by government leaders at both the last presidential and general elections that took place in January and August of this year. Their main pledge was to abolish the executive presidency and to change the electoral system from one based on proportional representation to a mixed system of proportional representation and first-past-the-post voting in which parliamentary seats would be apportioned in proportion to the total number of votes obtained by each of the political parties.

There is a general consensus in society about the need to reduce the power of individuals elected to power and to ensure their accountability. This is an outcome of the people’s experience of politics and governance over the past four decades after the constitution of 1972 made parliament supreme. However, today’s consensus in society about limiting the power of elected politicians does not necessarily carry over into a consensus within political parties and the politicians themselves. Even though President Maithripala Sirisena made a determined attempt after his election victory in January to achieve the goals of abolishing the executive presidency and changing the electoral system, he was only partially successful. He succeeded in reducing the power of the presidency and making it more accountable to other institutions through the 19th Amendment, but he did not succeed in pushing through reforms to the electoral system through the 20th Amendment which had to be discarded.

The lesson from the failure to enact constitutional reforms to the full extent desired earlier this year is that the partisan and personal interests of political actors have to be considered despite the general consensus that might exist in society regarding the need for change. There is a need for those who are guiding the process of change to be able to keep the different political parties and their members together in the task of achieving constitutional reform. The formation of a government of national unity at the present time has presented an unprecedented and unique opportunity for the entire Parliament to work together as one parliamentary committee. It is in this context that President Sirisena’s decision to extend the term of the local government authorities for a further six months instead of going for elections in March of next year needs to be seen. The president has justified the postponement of elections on the grounds that the delimitation of electorates is still not finalized and that over 2000 objections have to be dealt with first.

ABYSMAL FAILURE

Any revision of the constitution is going to affect different sections of the polity differently. Therefore there is a need for mutual accommodation and compromise in getting agreement on contentious issues. This implies that whatever is divisive should be minimized in order to give the constitutional reform process the best chance to succeed. Elections in Sri Lanka, especially in recent decades, have invariably been bitterly contested and divisive events in which much is at stake for the contesting political parties and the contestants. Many political parties and politicians have adopted a no-holds barred approach to winning elections in the past. On this occasion, it will not be possible for those who wish to engage in violence and thuggery to get away with it due to the empowerment of the Election Commissioner under the 19th Amendment. But a highly competitive election, even if conducted within the boundaries of the law, would lead to rivalry and one-upmanship between the political parties that must necessarily compete against each other. This would have adverse consequences for the spirit of mutual accommodation and compromise necessary for the constitutional reform process to be successful.

As the two dominant political parties at the local and national levels, the UNP and SLFP are going to be the main rivals at any election. But they are the two parties which form the core of today’s National Unity Government. It is their unity that makes constitutional reform possible, as together they have a 2/3 majority in Parliament. It is also necessary to recognize that constitutional reform will be more than dealing with the executive presidency and the electoral system. It will also have to involve the issues of devolution of power to the provinces, accountability for human rights violations, and a mutually agreeable political solution to the ethnic conflict which has been the most divisive political issues in the country for the past several decades. The failure of the polity to achieve bipartisan political cooperation to address this issue has been abysmal over a long period. Whichever party was in power faced an earthquake of political opposition when it tried to resolve the ethnic conflict through constitutional reform.

The alliance of President Sirisena and Prime Minister Wickremesinghe presents an unprecedented and unique opportunity for the polity to address the issue of the ethnic conflict in a more successful manner than in the past. The non-racist and statesmanlike behaviors of both these leaders have won the confidence of the ethnic and religious minorities and also of the more liberal segment of the ethnic majority community. It is noteworthy that virtually all of the small political parties, whether ideology-based or ethnic and religious-based, are broadly supportive of the National Unity Government. This was seen in the recent budget debate and vote in parliament, and also in their constructive responses to the recent trade union actions.

REAL POLITIK

There is also another possible reason why the government may not to wish to rush into the local government elections. This has to do with the split within the SLFP headed by President Sirisena. A longer period of waiting prior to elections is likely to strengthen President Sirisena’s hand in relation to former president Rajapaksa who still commands the support of a substantial section of parliamentarians, local level party cadres and voters of the SLFP. The split within the SLFP was evident at the recent vote on the budget when about half of the SLFP parliamentarians cast their votes against the budget proposed by the National Unity Government. There have been indications that this disgruntled faction of the SLFP under the leadership of the former president might contest the forthcoming local government elections as a third force.

The local government elections would offer the pro-Rajapaksa faction of the SLFP a platform to campaign against the sensitive aspects in the constitutional reform process. The former president continues to champion ethnic majority nationalism in the name of protecting the sovereignty and unity of the country. The local government elections would offer him an ideal platform to get his message across to the people regarding the dangers of the constitutional reform process. At the same time it would also offer a platform to Tamil nationalists in the North and East to contest the moderate TNA which has been supportive of the National Unity Government. Last week several of these parties and individuals formed a new organisation which observers see as the first step towards opposing the TNA called the Tamil People’s Council. As in the case of the pro-Rajapaksa faction they too could use the local government elections as a platform to oppose the mutual accommodations and compromises necessary to arrive at a political solution to the ethnic conflict.

It is significant that the time frames set by the government for constitutional reform and local government elections are the same. Parliament is set to convene as a constitutional assembly on January 9. Government sources have let it be known that Prime Minister Wickremesinghe will present a resolution to Parliament to continue parliamentary proceedings as a constitutional assembly to promulgate Sri Lanka’s third republican constitution to coincide with the first anniversary of President Sirisena’s swearing in as the president. The time frame for drafting the new constitution and getting it approved is six months. The local government elections are also being postponed by six months. Finalising the constitutional reform process in six months, which includes consultations with the general public, forming of parliamentary sub-committees and processing all the reports and obtaining consensus on them is going to be an uphill task. Having elections in this situation can disturb the smooth flow of the constitutional reform process, which justifies the postponement of the local government elections.